House Intelligence Committee Questions Need for SAFE Act

(June 10, 1999) The House Select Committee on Intelligence held a hearing on the SAFE Act. The Chairman of the Committee, Rep. Porter Goss, and other members, are opposed to the encryption bill.

Rep. Goss

Rep. Porter Goss (R-FL), the Chairman of the House Permanent Select Committee on Intelligence, presided over the hearing on HR 850, the Security and Freedom through Encryption Act. "H.R. 850," said Rep. Goss, "would do enormous harm to our nation's security and the public's safety, and would abdicate these obligations to the forces and whims of the marketplace."

Rep. Goss continued that "H.R. 850, could, if enacted without significant modification, endanger our ability in the very near future to conduct foreign policy; to defend our deployed troops; to defend our government installations throughout the world from terrorist attack; and to investigate, prosecute, and convict the most dangerous criminals, including spies and traitors, drug kingpins and child pornographers."

Rep. Goss is a former CIA agent who now represents a south Florida district which includes Fort Myers, Cape Coral, and Naples.

Perhaps the only statement which Rep. Porter made that the pro-encryption camp could find encouraging was, "Mandatory key escrow is a non-starter, a dead letter." However, whether the Clinton/Gore administration considers key escrow a non-starter is another question.

The administration was represented at this hearing, as it has been in many previous hearings, by William Reinsch, of the Commerce Department. Reinsch testified once again that the administration opposes HR 850.

He also said that the administration opposes the language in the bill that prohibits the government from mandating key escrow, or conditioning any government approval on the use of key escrow. Yet, he insisted, "we do not seek domestic controls." Rather, the administration seeks "voluntary key recovery."

The National Security Agency did not have a representative testify at the hearing. However, the committee received a closed briefing from the NSA on the day before. Rep. Julian Dixon (D-CA) stated that "yesterday, we were briefed by officials from the National Security Agency on the administration's view of the importance of maintaining export controls on encryption, as well as NSA's rebuttal to arguments that export controls at this point serve only to penalize U.S. industry since strong encryption products are already widely available abroad."

Rep. Goss asked Reinsch what encryption bills the administration supports. He answered, "we have not found one yet that we support."

Rep. Julian Dixon (D-CA), the Ranking Minority Member of the Committee, asked Reinsch if Clinton would veto HR 850. He responded that "we have not asked the President."

Rep. Bob Goodlatte (R-VA) (web site | bio) is the lead sponsor of the SAFE Act. He testified in favor of the bill.

Rep. Bob Goodlatte

Rep. Goodlatte has played a prominent role in almost every debate over encryption lately. As a member of the House Judiciary Committee, he led the debate in favor of adoption by that Committee. When an International Relations subcommittee held a hearing, he obtained permission to sit on the subcommittee for that hearing, and used occasion to effectively question the administration's representatives.

At yesterday's Intelligence Committee hearing, he appeared as the lead off witness. His testimony, and his subsequent exchanges with the members of the Committee, took up most of the first two hours of the hearing. Also, Rep. Goodlatte has been speaking frequently at public events both on and off Capitol Hill. If the SAFE Act becomes law, it will be due in significant part to the dogged persistence and effective advocacy of Rep. Goodlatte.

Rep. Goodlatte discussed how foreign companies were taking advantage of America's encryption export restraints. He stated that "we are creating huge incentives to send this industry abroad."

During an exchange with Rep. Goss, Rep. Goodlatte explained that his bill does not prohibit the voluntary use of key recovery. It does prohibit the government from mandating key recovery. Reinsch, however, took issue with this.

William Reinsch offered the following: "We would agree with Mr. Goodlatte that his bill does not prevent companies from voluntarily developing key recovery encryption, and it is not mandatory. And, I think what he said, we would agree with, in terms of his interpretation of the bill. We believe, however, that the bill effectively tilts the playing field away from the use and development of key recovery products, because it precludes the government from providing incentives for their development. And it essentially tells us to apply the same regulatory policy to recoverable and nonrecoverable products. Which means we would not be in a position to favor recoverable products vis a vis nonrecoverable products. So, I think in effect, it tilts the playing field away from key recovery and recovery products. Although, he is correct in saying that it does not."

Rep. Goodlatte responded that "the bill does not preclude incentives for the creation of voluntary key recovery systems, but it does preclude conditioning approval on the existence" of key recovery. "In other words -- doing business with the government -- requiring that you have to have one of these systems in order to do business with the government. It would preclude that."

Rep. Sanford Bishop (D-GA) tried to explore the possibility of compromising or delaying action. He said that we need to find a "middle ground." Rep. Goodlatte responded that "the problem is that some of these things are either or." He explained that "you either have key escrow, or you don't."

Rep. Bishop said that "I am pulled in both directions," between the "inviolability of the 4th Amendment and our right to privacy," on the one hand, and giving law enforcement and national security agencies the "tools they need." He suggested that the Congress should "slow down" while it searches for "common ground." Rep. Goodlatte responded that "I think that that would be a bad approach," because American software companies are now under pressure from foreign competition.

The hearing had one light moment. Rep. Bishop, who is a liberal Democrat, delighted in asking Rep. Goodlatte, who is a conservative Republican, whether the SAFE Act would "liberalize" encryption export restraints.

The Committee also heard from two industry representatives, Christopher Caine (IBM) and Elizabeth Kaufman (Cisco). Finally, the Committee heard from a panel made up of Michael Robinson (International Association of Chiefs of Police), Alan Davidson (Center for Democracy and Technology), Ramon Marks (Business Executives for National Security), John Kaye (National District Attorneys Association), and Richard Heideman (B'nai B'rith).

The members of the Committee who participated in all or part of the hearing included Sanford Bishop (D-GA), Michael Castle (R-DE), Julian Dixon (D-CA), James Gibbons (R-NV), Porter Goss (R-FL), Bill McCullom (R-FL), Nancy Pelosi (D-CA), Tim Roemer (D-IN), and Norman Sisisky (D-VA).